Argued: May 11, 2017
from the United States District Court for the District of
Maryland, at Baltimore. James K. Bredar, District Judge.
Marcus Ripke, NATHANS & BIDDLE, LLP, Baltimore, Maryland,
Joseph Wise, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee.
W. Biddle, NATHANS & BIDDLE, LLP, Baltimore, Maryland,
Rosenstein, United States Attorney, P. Michael Cunningham,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee.
WILKINSON, KING, and WYNN, Circuit Judges.
WILKINSON, Circuit Judge
Chikvashvili, the former CEO of diagnostic imaging company
Alpha Diagnostics, was charged with two counts of healthcare
fraud resulting in death under 18 U.S.C. § 1347. At
trial, the government alleged that Chikvashvili directed
unqualified radiologic technicians to interpret x-rays and
billed Medicare as though licensed physicians had performed
the work. The government further contended that two patients
died because their x-rays were misread by Alpha technicians.
A jury convicted Chikvashvili on both counts.
seeks acquittal on appeal. For criminal liability to attach
under Section 1347, he argues, the false billing-as opposed
to the fraudulent scheme as a whole-must be the
"but-for" cause of death. Because the fraudulent
billing did not cause the deaths of the two patients,
Chikvashvili concludes, this court ought to vacate the
"resulting in death" convictions. This same
reasoning underlies his appeal of the district court's
denial of his motion for acquittal and his challenge to the
indictment and jury instructions. He also appeals the
admission of expert testimony on causation. We reject his
various challenges and affirm the judgment.
founded Alpha Diagnostics and served as the company's
CEO. Alpha provided portable, on-site diagnostic imaging
services such as x-rays, sonograms, and electrocardiograms.
An Alpha technician would travel to the patient's
location, perform the imaging requested by the patient's
attending physician, and transmit the results to a qualified
doctor for interpretation. Alpha's revenue came from its
patients and their insurers, including Medicare and Medicaid.
government alleges that Chikvashvili supervised an elaborate,
longstanding conspiracy to cheat Medicare through an
assortment of fraudulent practices. Three former employees,
all of whom worked as technicians, testified for the
government. According to these witnesses, Alpha routinely
requested reimbursement for two x-ray images when it had
taken only one. Testimony also indicated that Alpha regularly
charged excessive transportation costs, pretending that
technicians had made separate trips to serve different
patients at a single facility despite assisting multiple
patients at a time. These accounts were corroborated by
another former employee who oversaw billing and office
administration. This employee also asserted that Alpha
changed the attending physician's diagnosis or symptom
codes so that the service would qualify for Medicare
appeal concerns an even more dangerous form of healthcare
fraud. According to Chikvashvili's former technicians,
Chikvashvili directed them to interpret scans, prepare
reports, and submit the results to attending physicians while
passing off their handiwork as that of actual,
board-certified radiologists and cardiologists. For some
reports, technicians signed with a doctor's name; for
others, Chikvashvili placed cut-outs of physicians'
signatures on the documents. Alpha would then submit claims
for reimbursement to Medicare as though qualified physicians
had examined the images. The fraud was pervasive. One of the
three technicians claimed that Chikvashvili directed them to
read as many scans as possible and that they were responsible
for analyzing the vast majority of Alpha's diagnostic
images. Chikvashvili, for his part, kept a detailed log of
Alpha's services. The technicians reported that he
denoted fraudulent, in-house reads by placing a
"minus" sign next to the initials of the purported
instances, the technicians made mistakes in interpreting the
images. And on two occasions, a patient died after an Alpha
technician overlooked the congestive heart failure documented
in her x-ray. One patient, M.V.K., lived in a nursing home
and had a chest x-ray taken shortly before her death. Alpha
performed a chest x-ray of another patient, D.M.C., prior to
D.M.C.'s elective surgery. D.M.C. bled profusely
following the surgery and died shortly thereafter. The
government's expert witnesses- Dr. Sanjeev Bhalla and Dr.
Philip Buescher-opined that Alpha's reports on M.V.K and
D.M.C. failed to diagnose congestive heart failure in both
Buescher also offered an opinion on causation. He testified
that Alpha's misreads of the x-rays were the but-for
causes of death for M.V.K. and D.M.C. In M.V.K's case,
Dr. Buescher explained, diagnosing her congestive heart
failure would have led to treatment at a hospital, which
would have alleviated her condition. And diagnosing
D.M.C.'s condition would have led her attending physician
to postpone her elective surgery until her heart condition
had been addressed. In Dr. Buescher's opinion, neither
patient would have died if their x-rays had been interpreted
deaths of M.V.K. and D.M.C. formed the respective bases for
Counts 2 and 3 of the indictment, which charged Chikvashvili
with healthcare fraud resulting in death under 18 U.S.C.
§ 1347. Chikvashvili was also charged with conspiracy to
commit healthcare fraud (Count 1); healthcare fraud (Counts
4-12); wire fraud (Counts 13-20); false statements relating
to healthcare matters (Counts 21-31); and aggravated identity
theft (Counts 32-33).
lodged a number of unsuccessful objections to the proceedings
below. First, before trial, Chikvashvili moved to exclude Dr.
Buescher's expert testimony on causation with respect to
Counts 2 and 3. The district court, however, ruled that Dr.
Buescher's testimony was admissible. After the government
closed its evidence, Chikvashvili moved for a judgment of
acquittal under Rule 29 of the Federal Rules of Criminal
Procedure, arguing that the evidence was legally insufficient
for a conviction on any count. The district court denied the
motion. Finally, Chikvashvili objected to two summation
paragraphs in the jury instruction on Counts 2 and 3 but was
convicted Chikvashvili on all counts, and he was sentenced to
a total of 120 months of imprisonment.
Chikvashvili renewed his Rule 29 motion for acquittal, the
district court rejected his request once again. The court
noted that the government had presented "a mountain of
evidence against Chikvashvili" in general as well as
"ample evidence" that "the health care fraud
orchestrated and carried on by Chikvashvili was the but-for